Lecture 9: Applicable Law and
Matters of Tort
The Limited Application of English Common Law Rules
Introduction to English Common Law Rules on Torts
Historical Context:
The Double Actionability Rule (Rule 203):
Exception to the Rule:
Abrogation and Current Status of the Rule:
Application Exceptions and Timeline:
Rome II Regulation
Background to the Rome II Regulation
Introduction and Purpose:
General Aims of Rome II:
Key Preamble Recitals:
General Framework of Rome II
Identifiable Connecting Factors:
Temporal Scope
Reference to Articles 31 and 32:
Impact of Brexit:
Material Scope
Article 1(1) - Application in Conflict of Laws:
Matters Excluded Under Article 1(2) Rome II:
Distinguishing Between Non-Contractual and Contractual Obligations
Defining Non-Contractual Obligation:
Characteristics of Contractual Obligations:
Nature of Non-Contractual Obligations:
Nuances and Legal Interpretations
Broader Scope of Non-Contractual Obligations:
Interplay with Rome I and Rome II Regulations:
Implications for Legal Practice:
Characterisation in Private International Law
Necessity of Characterisation:
Divergence in Legal Systems:
European Court of Justice (ECJ) Approach:
Rome II Regulation: Non-Contractual Obligations
Scope of Non-Contractual Obligations (Art 2 Rome II):
Application to Pre-emptive Actions:
Example: Unjust Enrichment (Art 10 Rome II):
Lecture 9: Applicable Law and Matters of Tort 1
, Applicable Law under Rome II
Overview of Choice of Law Rules in Rome II
Five Sets of Choice of Law Rules:
Party Autonomy and Freedom of Choice
Exercise of Party Autonomy:
Conditions for Valid Choice:
Protection of Weaker Parties:
Limitations as per Rome II Regulation
1. Balancing Party Autonomy and Protection of Weaker Parties
2. Restrictions on Law Applicable to Certain Non-Contractual Obligations
3. Insurance Contracts
4. Application of Law in Specific Situations (Art 14(2))
General Rule for Determining Applicable Law
Legal Foundation:
Lex Loci Damni Rule:
Objective of Article 4(1) Rome II:
Guidance on Article 4(1) Rome II
Recitals 16 and 17:
Challenges in Identifying Lex Loci Damni
Complexities in Application:
Rules for Damage under Rome II Regulation and ECJ Case Law
1. Perishable Goods in Transit
2. Damage Occurring in Multiple Countries
3. Economic Torts
4. Damage to Property
Challenges in Identifying the Place of Damage
Understanding the Meaning of 'Damage' in Art 4(1) Rome II
Definition and Scope:
Influence of the Brussels Regime:
Jurisdiction Cases Illustrating Lex Loci Damni Identification
Case 1: C-220/88 Dumez France SA and Tracoba SARL v Hessische Landesbank
Case 2: C-364/93 Marinari v Lloyds Bank
Case 3: C-168/02 Kronhofer v Maier
Basic Provision of Article 4(2):
Automatic Exception to Article 4(1):
Purpose of Article 4(2):
Understanding Habitual Residence (Art 23)
Habitual Residence for Companies and Other Bodies:
Habitual Residence for Natural Persons in Business:
Habitual Residence for Individuals in Personal Capacity:
Case Study: Winrow v Hemphill
Context of the Case:
Lecture 9: Applicable Law and Matters of Tort 2
, Analysis of Habitual Residence in Winrow:
Implications in Applying Article 4(2)
Key Consideration in Applying Article 4(2):
Example Application:
Article 4(3) Rome II - Escape Clause
Overview of Article 4(3) Rome II
Introduction to Escape Clause:
Application of Art 4(3):
Can Art 4(3) Override Art 4(2)?
The Exceptional Nature of Art 4(3)
Purpose of Article 4(3):
High Threshold for Displacement:
Determining a 'Manifestly Closer Connection'
'Pre-existing Relationship' and Its Impact
Art 4(3) as an Exception to Art 4(1) and Art 4(2)
Special rules for certain types of obligations
The Limited Application of English
Common Law Rules
Introduction to English Common Law Rules on Torts
Historical Context:
"Double Actionability" Rule: A historical principle in English common law for
determining the applicability of torts committed in foreign countries.
Source: Articulated in Dicey and Morris's "The Conflict of Laws" (12th edition,
1993).
The Double Actionability Rule (Rule 203):
General Principle:
1. An act is a tort in England if it is:
a) Actionable as a tort according to English law.
b) Actionable according to the law of the foreign country where it
occurred.
Significant Relationship Clause:
Lecture 9: Applicable Law and Matters of Tort 3
Matters of Tort
The Limited Application of English Common Law Rules
Introduction to English Common Law Rules on Torts
Historical Context:
The Double Actionability Rule (Rule 203):
Exception to the Rule:
Abrogation and Current Status of the Rule:
Application Exceptions and Timeline:
Rome II Regulation
Background to the Rome II Regulation
Introduction and Purpose:
General Aims of Rome II:
Key Preamble Recitals:
General Framework of Rome II
Identifiable Connecting Factors:
Temporal Scope
Reference to Articles 31 and 32:
Impact of Brexit:
Material Scope
Article 1(1) - Application in Conflict of Laws:
Matters Excluded Under Article 1(2) Rome II:
Distinguishing Between Non-Contractual and Contractual Obligations
Defining Non-Contractual Obligation:
Characteristics of Contractual Obligations:
Nature of Non-Contractual Obligations:
Nuances and Legal Interpretations
Broader Scope of Non-Contractual Obligations:
Interplay with Rome I and Rome II Regulations:
Implications for Legal Practice:
Characterisation in Private International Law
Necessity of Characterisation:
Divergence in Legal Systems:
European Court of Justice (ECJ) Approach:
Rome II Regulation: Non-Contractual Obligations
Scope of Non-Contractual Obligations (Art 2 Rome II):
Application to Pre-emptive Actions:
Example: Unjust Enrichment (Art 10 Rome II):
Lecture 9: Applicable Law and Matters of Tort 1
, Applicable Law under Rome II
Overview of Choice of Law Rules in Rome II
Five Sets of Choice of Law Rules:
Party Autonomy and Freedom of Choice
Exercise of Party Autonomy:
Conditions for Valid Choice:
Protection of Weaker Parties:
Limitations as per Rome II Regulation
1. Balancing Party Autonomy and Protection of Weaker Parties
2. Restrictions on Law Applicable to Certain Non-Contractual Obligations
3. Insurance Contracts
4. Application of Law in Specific Situations (Art 14(2))
General Rule for Determining Applicable Law
Legal Foundation:
Lex Loci Damni Rule:
Objective of Article 4(1) Rome II:
Guidance on Article 4(1) Rome II
Recitals 16 and 17:
Challenges in Identifying Lex Loci Damni
Complexities in Application:
Rules for Damage under Rome II Regulation and ECJ Case Law
1. Perishable Goods in Transit
2. Damage Occurring in Multiple Countries
3. Economic Torts
4. Damage to Property
Challenges in Identifying the Place of Damage
Understanding the Meaning of 'Damage' in Art 4(1) Rome II
Definition and Scope:
Influence of the Brussels Regime:
Jurisdiction Cases Illustrating Lex Loci Damni Identification
Case 1: C-220/88 Dumez France SA and Tracoba SARL v Hessische Landesbank
Case 2: C-364/93 Marinari v Lloyds Bank
Case 3: C-168/02 Kronhofer v Maier
Basic Provision of Article 4(2):
Automatic Exception to Article 4(1):
Purpose of Article 4(2):
Understanding Habitual Residence (Art 23)
Habitual Residence for Companies and Other Bodies:
Habitual Residence for Natural Persons in Business:
Habitual Residence for Individuals in Personal Capacity:
Case Study: Winrow v Hemphill
Context of the Case:
Lecture 9: Applicable Law and Matters of Tort 2
, Analysis of Habitual Residence in Winrow:
Implications in Applying Article 4(2)
Key Consideration in Applying Article 4(2):
Example Application:
Article 4(3) Rome II - Escape Clause
Overview of Article 4(3) Rome II
Introduction to Escape Clause:
Application of Art 4(3):
Can Art 4(3) Override Art 4(2)?
The Exceptional Nature of Art 4(3)
Purpose of Article 4(3):
High Threshold for Displacement:
Determining a 'Manifestly Closer Connection'
'Pre-existing Relationship' and Its Impact
Art 4(3) as an Exception to Art 4(1) and Art 4(2)
Special rules for certain types of obligations
The Limited Application of English
Common Law Rules
Introduction to English Common Law Rules on Torts
Historical Context:
"Double Actionability" Rule: A historical principle in English common law for
determining the applicability of torts committed in foreign countries.
Source: Articulated in Dicey and Morris's "The Conflict of Laws" (12th edition,
1993).
The Double Actionability Rule (Rule 203):
General Principle:
1. An act is a tort in England if it is:
a) Actionable as a tort according to English law.
b) Actionable according to the law of the foreign country where it
occurred.
Significant Relationship Clause:
Lecture 9: Applicable Law and Matters of Tort 3
